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September 28, 2013 9:12 AM Time to brush up on the Food and Forage Act of 1861, everybody

By Samuel Knight

The Atlantic’s Andrew Cohen has penned an easy-to-read informative piece about the Antideficiency Act - the obscure legislation that permits government shutdowns.

In addition to giving a historical perspective to federal shutdowns and the inter-branch power struggle over public funding it attempted to address, Cohen explains how shutdowns are: (1) not as drastic as they sound; and (2) counterproductive from a deficit hawk point of view.

On the first point, it’s not just employees deemed “essential” who will evade the furlough-hammer; another arcane law creates a class of “federal workers…explicitly exempted” from normal appropriations laws by the executive branch:

Perhaps the most interesting example of a “specific exemption,” [Harvard Law Professor Howell E.] Jackson says, is the Food and Forage Act of 1861 — near the start of the Civil War. As the title suggests, that law permitted soldiers to graze their horses and take whatever other necessities were required to live on horseback. It’s a law that was invoked in a decidedly non-horsey sense during the Vietnam War, again during Operation Desert Shield in Iraq in 1990, and, for a brief time, immediately following the terror attacks of September 11, 2001.
“Federal employees can accept volunteers or go beyond their funding in cases of emergency involving the safety of human life or the protection of property,” Westmoreland says. So federal firefighters and law enforcement officials clearly are exempt, Tiefer adds, as are judges presiding over criminal (but not necessarily civil) cases. Moreover, it’s the OMB, with help from the Justice Department, that makes the call on who is essential and who is not, and each federal department, as we see above in the judicial example, has formulated its shutdown protocols. Westmoreland writes:
There has been a lot of legal interpretation (including during the Reagan and Clinton Administrations) of what this means. Overall, it has been interpreted narrowly but not rigidly. But the threat to life or property has to be “imminent.” Air-traffic controllers and meat inspectors can generally keep working. People writing checks or doing maintenance generally cannot.

Of course, this is scant comfort to the public employees who provide “non-essential” (but important) services that aren’t exempted by the Food and Forage Act. However, they might end up no worse off financially when all is said and done. Which brings us to the second point:

“The irony is that it always costs money to restart them and they typically get their back pay for the days they don’t work, the government employees, and they have to catch up on the work that’s not done while they are on these involuntary furloughs,” Jackson said.”So it’s a very expensive way to play politics over the fiscal crisis.”

Not that we needed another reminder that this budget fight isn’t actually about fiscal responsibility.

Samuel Knight is a freelance journalist living in DC and a former intern at the Washington Monthly.

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